King v. U.S.

• Decision Date: 23 February 2010
• Docket Number: No. 09-2212.,09-2212.
• Citation: 595 F.3d 844
• Parties: Johnnie KING, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

595 F.3d 844

Johnnie KING, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 09-2212.

United States Court of Appeals, Eighth Circuit.

Submitted: January 12, 2010.

Filed: February 23, 2010.

Lee Lawless, AFPD, argued, St. Louis, MO, for Appellant.

Thomas Joseph Mehan, AUSA, argued, St. Louis, MO, for Appellee.

Before MURPHY and BYE, Circuit Judges, and STROM,¹ District Judge.

MURPHY, Circuit Judge.

Before the court is Johnnie King's appeal from the denial of his motion to vacate his sentence pursuant to 28 U.S.C. § 2255. After King pled guilty to one count of possession of crack cocaine with intent to distribute, he was sentenced as a career offender under U.S.S.G. § 4B1.1 to a term of 196 months. King's direct appeal was dismissed on the basis of an appeal waiver in his plea agreement. That agreement preserved the right to raise a claim of ineffective assistance of counsel in a collateral proceeding, however.

King brought this § 2255 petition pro se, raising a relatively sophisticated argument about the application of the United States Sentencing Guidelines. He argues that the sentencing court erred in its application of U.S.S.G. § 4A1.2(a)(2), the guideline grouping rule for assigning criminal history points to prior felonies, and § 4B1.2(c), which defines the felonies that count as predicates for the career offender guideline. King contends that he should not have been sentenced under § 4B1.1 because only one of his prior felonies was a career offender predicate under these provisions, and that his attorney was unconstitutionally ineffective for failing to raise this issue.

The district court denied King's petition for relief, but granted his request for a certificate of appealability. We vacate King's sentence and remand for resentencing.

I.

Johnnie King pled guilty to one charge of possession with intent to distribute more than 50 grams of a substance containing cocaine base, in violation of 21 U.S.C. § 841(a)(1). The 2005 edition of the United States Sentencing Guidelines Manual applied to his sentencing. King's plea agreement recommended that he be sentenced under U.S.S.G. § 2D1.1(c)(4) with a three level reduction for acceptance of responsibility. It originally recommended an incorrect guideline and base offense level of 26, but the parties recognized that mistake before sentencing and later agreed that the base offense level should be 32. The agreement also provided that King waived his right to appeal sentencing issues "[i]n the event the Court accepts the plea and, in sentencing the defendant . . . applies the recommendations agreed to by the parties herein." In addition King waived "all rights to contest the conviction or sentence in any post-conviction proceeding . . . except for claims of prosecutorial misconduct or ineffective assistance of counsel."

The PSR projected a higher guideline range for King than the plea agreement had because it concluded that he was a career offender based on his prior conviction for a drug felony and two predicate crimes of violence. It attributed a sentence range for King of 262 to 327 months under U.S.S.G. § 4B1.1, based on a total offense level of 34 and criminal history category VI. King did not object to the PSR's recommendations, and they were accepted by the district court at sentencing. The government moved for a downward departure for King's assistance under U.S.S.G. § 5K1.1. The district court granted the motion and sentenced King to 196 months in prison.

King appealed, but the government's motion to dismiss was granted on the basis of the appeal waiver in his plea agreement. King then moved the district court to vacate his sentence under 28 U.S.C. § 2255. While he conceded that his prior drug felony qualified as a career offender predicate, King argued pro se that U.S.S.G. § 4B1.1 did not apply because the predicate offenses termed crimes of violence had been incorrectly treated under the guideline grouping rule and neither met the definition of a "prior felony conviction[]" under the career offender guideline. He also maintained that his lawyer had been unconstitutionally ineffective for failing to challenge the application of the career offender guideline at sentencing.

The district court denied King relief, but granted a certificate of appealability "on the issue of ineffective assistance of counsel as it relates to movant's career offender status for sentencing purposes." As no material facts are disputed, we review de novo the district court's denial of King's § 2255 petition. United States v. Martinez-Salinas, 573 F.3d 595, 598 (8th Cir. 2009) (per curiam).

II.

When a criminal defendant has qualifying felonies involving drugs or violence, the sentencing guidelines consider him a "career offender" and call for an enhanced base offense level and criminal history category of VI. The career offender guideline, U.S.S.G. § 4B1.1, provides:

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. Manual § 4B1.1(a) (2005).

Not all crimes of violence or drug felonies count as predicates under § 4B1.1, however. Section 4B1.2(c) instructs that "[t]he term `two prior felony convictions' means . . . the sentences for [the prior felonies] are counted separately under the provisions of § 4A1.1(a), (b), or (c)," which govern the calculation of a defendant's criminal history category. Thus, "[t]o qualify as a `prior felony' for career offender purposes, the felony must receive criminal history points under subsection (a), (b), or (c) of [§] 4A1.1." United States v. Peters, 215 F.3d 861, 862 (8th Cir.2000) (citing U.S.S.G. § 4B1.2(c)).

The dispute between the parties here grows out of the way the guidelines assign criminal history points to groups of related prior sentences. If a defendant's prior offenses were committed on the same occasion or consolidated for trial or sentencing, "they are deemed related cases under the sentencing guidelines and `are to be treated as one sentence for purposes of § 4A1.1(a), (b), and (c).'" Id. at 862-63 (quoting U.S.S.G. § 4A1.2(a)(2)). Because § 4A1.1 assigns criminal history points based on the length of a prior sentence, however, the question arises here about which sentence should be counted among several related offenses consolidated for sentencing.

Section 4A1.2(a)(2) provides the grouping rule. In order to determine which subsection of § 4A1.1 a group of related prior sentences falls under, we "[u]se the longest sentence of imprisonment if concurrent sentences were imposed and the aggregate sentence of imprisonment imposed in the case of consecutive sentences." U.S.S.G. § 4A1.2(a)(2).

Each of King's disputed career offender predicates was in a group of related offenses which had been sentenced together and then were given a single criminal history point in the PSR under § 4A1.1(c). King argues that in each group, the criminal history point should have properly been attributed to an offense which was not a career offender predicate. If the point had been correctly assigned in each group, he argues, his convictions for resisting arrest would not have received any under § 4A1.1(a), (b), or (c). Consequently those offenses would not trigger the career offender guideline as "`prior felonies' within the meaning of the guidelines." Peters, 215 F.3d at 863.

According to the PSR, King was sentenced in state court on April 1, 2005 on two groups of convictions. The first group had four counts: (1) trafficking drugs in the second degree; (2) unlawful use of a weapon; (3) resisting or interfering with arrest; and (4) third degree assault on a law enforcement officer. He received a ten year suspended sentence for the drug trafficking charge to run concurrently with four year suspended sentences on the second and third charges and a one year suspended sentence on the fourth.

The PSR grouped these four sentences together and assigned one criminal history point to the group under § 4A1.1(c). The parties agree that these sentences are "related" and that the only count in the group that could potentially serve as a predicate under § 4B1.1 is the conviction for resisting arrest. According to § 4A1.2(a)(2), however, the drug trafficking sentence should receive the criminal history point for this group because it was the longest. That offense was not a qualifying felony for career offender purposes under § 4B1.1.² Since the resisting arrest charge did not receive a criminal history point, King argues, it cannot be a predicate for § 4B1.1.

King's other potential career offender predicate presents a similar situation. Also on April 1, 2005, King was sentenced on another group of three counts: (1) possession of a controlled substance (cocaine base); (2) resisting or interfering with arrest; and (3) possession of marijuana. He received concurrent suspended sentences of four years for the first two counts and one year for the third. Once again these sentences are related for purposes of calculating criminal history points, and only the resisting arrest charge could potentially qualify as a predicate felony under § 4B1.1. Since King received equivalent suspended sentences for the first and second counts in respect to this group, it is unclear which should receive a criminal history point. Either both of them are "the longest sentence of imprisonment," § 4A1.2(a)(2), or neither is. King argues that under the rule of lenity we should ascribe the criminal history point in this group to the nonpredicate offense and conclude that the resisting arrest conviction in count two does not serve as a predicate under § 4B1.1.

After considerable study, we...